STATE OF MICHIGAN EMPLOYMENT RELATIONS COMMISSION LABOR RELATIONS DIVISION

STATE OF MICHIGAN
EMPLOYMENT RELATIONS COMMISSION
LABOR RELATIONS DIVISION
In the Matter of:
CITY OF BATTLE CREEK POLICE DEPARTMENT,
Public Employer-Respondent,
Case Nos. C13 E-079 & CU13 E-018
-andDocket Nos. 13-002770-MERC &
13-002772-MERC
POLICE OFFICERS LABOR COUNCIL,
Labor Organization-Respondent,
-andMARSHALL, SCOTT E.,
An Individual-Charging Party.
/
APPEARANCES:
Scott E. Marshall, appearing on his own behalf
DECISION AND ORDER
On July 3, 2013, Administrative Law Judge Doyle O’Connor issued his Decision and
Recommended Order in the above matter finding that Respondents did not violate Section 10 of the Public
Employment Relations Act, 1965 PA 379, as amended, and recommending that the Commission dismiss
the charges and complaint.
The Decision and Recommended Order of the Administrative Law Judge was served on the
interested parties in accord with Section 16 of the Act.
The parties have had an opportunity to review the Decision and Recommended Order for a period
of at least 20 days from the date of service and no exceptions have been filed by any of the parties.
ORDER
Pursuant to Section 16 of the Act, the Commission adopts the recommended order of the
Administrative Law Judge as its final order.
MICHIGAN EMPLOYMENT RELATIONS COMMISSION
___________________________________________
Edward D. Callaghan, Commission Chair
___________________________________________
Robert S. LaBrant, Commission Member
Dated:
___________________________________________
Natalie P. Yaw, Commission Member
STATE OF MICHIGAN
MICHIGAN ADMINISTRATIVE HEARING SYSTEM
EMPLOYMENT RELATIONS COMMISSION
In the Matter of:
CITY OF BATTLE CREEK POLICE DEPARTMENT,
Respondent-Public Employer,
Case No. C13 E-079&
CU13 E-018
-andPOLICE OFFICERS LABOR COUNCIL,
Respondent-Labor Organization,
Docket 13-002770-MERC &
13-002772-MERC
-andMARSHALL, SCOTT E.,
An Individual Charging Party.
/
APPEARANCES:
Scott E. Marshall, Charging Party, appearing personally
DECISION AND RECOMMENDED ORDER
OF ADMINISTRATIVE LAW JUDGE
ON SUMMARY DISPOSITION
Pursuant to the Public Employment Relations Act (PERA), 1965 PA
379, as amended, MCL 423.201 et seq, this case was assigned to Doyle
O’Connor, Administrative Law Judge (ALJ) of the Michigan
Administrative Hearing System (MAHS), on behalf of the Michigan
Employment Relations Commission.
The Unfair Labor Practice Charges:
On May 6, 2013, two related charges were filed in this matter. The
charge in case CU13 E-018 asserts that Respondent Police Officers Labor
Council (the POLC or Union) violated its duty to fairly represent Scott E.
Marshall (Marshall or the Charging Party) regarding a grievance matter.
The second charge, filed against Respondent City of Battle Creek (the
Employer) in case C13 E-079 asserted that the Employer retaliated
against Marshall for reporting alleged misconduct by a co-worker in
2009, with the alleged retaliatory acts occurring in 2009, 2010 and 2011.
On May 30, 2013, pursuant to R 423.165(2)(d), the Charging Party was
ordered to show cause by no later than June 28, 2013, why the two
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charges should not be dismissed for failure to state claims upon which
relief could be granted. In that Order, Charging Party was expressly
cautioned that if the Charges and his response to the Order did not state
valid claims, or if the Charges were not timely filed, or if he did not timely
respond to the Order, a decision would be issued recommending that the
Charges be dismissed without a hearing. Charging Party did not respond
in any way to the Order, nor did he request an extension of time in which
to reply.
The Charge and Findings of Fact Regarding the Employer:
The Charge filed in this matter asserted that the Employer treated
Charging Party improperly or unfairly by retaliating against him in 2009,
2010, and 2011. Charging Party’s express assertion was that the
Employer’s retaliation was motivated by Marshall’s report of alleged
unlawful and violent misconduct by a co-worker, directed at an arrestee.
Because there is no allegation suggesting that the Employer was
motivated by union or other activity protected by PERA, the charge
against the Employer failed to state a claim upon which relief could be
granted.
Additionally, Charging Party was cautioned that under PERA, there
is a strict six-month statute of limitations for the filing and service of
charges, and a charge alleging an unfair labor practice occurring more
than six months prior to the filing and service of the charge is untimely.
The events that lead to the filing of the charge all occurred in 2009-2011,
with the Charge filed in 2013.
Charging Party was granted an opportunity to file a written
statement explaining why the charges against the Employer should not
be dismissed prior to a hearing. Charging Party was expressly cautioned
that to avoid dismissal of the Charge, any response to this Order to Show
Cause must provide a factual basis to proceed that establishes the
existence of alleged discrimination in violation of PERA and that it
occurred within six-months of filing the charge. As noted above, no
response to the order was filed.
Discussion and Conclusions of Law Regarding the Charge Against
the Employer:
Where a charge fails to state a claim under the Act, it is subject to
dismissal pursuant to an order to show cause issued under R423.165.
The failure to respond to such an order may, in itself, warrant dismissal.
Detroit Federation of Teachers, 21 MPER 3 (2008). Regardless, PERA does
not prohibit all types of discrimination or unfair treatment, nor is the
Commission charged with interpreting a collective bargaining agreement
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to determine whether its provisions were followed. Absent a factually
supported allegation that the Employer was motivated by union or other
activity protected by Section 9 of PERA, the Commission is prohibited
from making a judgment on the merits or fairness of the actions
complained of by Charging Party in this matter. See e.g. City of Detroit
(Fire Department), 1988 MERC Lab Op 561, 563-564; Detroit Board of
Education, 1987 MERC Lab Op 523, 524. Because there is no allegation
suggesting that the Employer was motivated by union or other activity
protected by PERA, the charge against the Employer fails to state a claim
upon which relief can be granted.
Additionally, under PERA, there is a strict six-month statute of
limitations for the filing and service of charges, and a charge alleging an
unfair labor practice occurring more than six months prior to the filing
and service of the charge is untimely.
The six-month statute of
limitations is jurisdictional and cannot be waived. Walkerville Rural
Community Schools, 1994 MERC Lab Op 582, 583. Dismissal is required
when a charge is not timely or properly served. See City of Dearborn,
1994 MERC Lab Op 413, 415. The complained of events happened in
2009-2011, with the charge filed in 2013, well outside the controlling
statute of limitations.
Taking each factual allegation in the charge in the light most
favorable to Charging Party, the allegations in C13 E-079 do not state a
claim against the Employer under PERA, the statute that this agency
enforces, and the charge is therefore subject to summary dismissal.
The Charge and Findings of Fact Regarding the Union:
The May 6, 2013, allegations filed against the Union did not
properly state a claim under the Public Employment Relations Act
(PERA), the statute that this agency enforces, and were therefore subject
to dismissal. It also appeared that the Charge against the Union may not
have been timely filed.
The charge alleged that, on November 13, 2012, the Union advised
Marshall that they were declining to take grievance #12-128 to
arbitration. It is unclear from the Charge what the nature of the
grievance was; however, it appears from documents attached to the
Charge that the grievance was filed by Marshall in September of 2012 to
address his concerns with what he perceived to be misconduct by a
fellow officer which had occurred in November of 2011. Marshall believed
the officer had wrongfully failed to back him up on a domestic violence
call, which Marshall believed to be a safety violation. Because Unions
have the discretionary authority to decide whether or not a particular
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case should be pursued to arbitration, the mere allegation that the Union
declined to take a particular case to arbitration does not state a claim
under PERA and the charge is therefore subject to being dismissed
without a hearing. Additionally, the Charge did not provide any basis for
establishing that the collective bargaining agreement was breached.
Further, it was asserted by Marshall that the Union first told Marshall
that they would not pursue such a grievance as early as February 2012,
and that the Charge may therefore have not been timely when filed on
May 6, 2013.
Charging Party was granted an opportunity to file a written
statement explaining why the charges against the Union should not be
dismissed prior to a hearing. Charging Party was expressly cautioned
that to avoid dismissal of the Charge, any response to this Order to Show
Cause must provide a factual basis to proceed that establishes the
existence of alleged discrimination in violation of PERA and that it
occurred within six-months of filing the charge. Charging Party was
provided with a description of the relevant case law. As noted above, no
response to the order was filed.
Discussion and Conclusions of Law Regarding the Charge Against
the Union:
Where a charge fails to state a claim under the Act, it is subject to
dismissal pursuant to an order to show cause issued under R423.165.
The failure to respond to such an order may, in itself, warrant dismissal.
Detroit Federation of Teachers, 21 MPER 3 (2008). Regardless, Marshall
alleged no facts which if proven would establish any breach by the Union
of its duty of fair representation. The facts alleged show only that
Marshall disagreed with the Union over the merits of a particular
grievance, which on its face did not appear to be the sort of dispute
ordinarily addressed in the grievance procedure. The elected officials of a
union have the right, and the obligation, to reach a good faith conclusion
as to the proper goals to be secured in addressing a grievance claim in a
particular situation, and are expected, and entitled, to act on behalf of
the greater good of the bargaining unit, even to the disadvantage of
certain employees. Lowe v Hotel & Restaurant Employees Union, Local
705, 389 Mich 123, 145-146 (1973); Lansing Sch Dist, 1989 MERC Lab
Op 210, 218, aff’d Mich App No. 116345 (March 26, 1991), lv app den
439 Mich 955 (1992); City of Flint, 1996 MERC Lab Op 1. See also, Air
Line Pilots Ass'n v O'Neill, 499 US 65, 67 (1991).
Taking each factual allegation in the charge in the light most
favorable to Charging Party, the allegations in CU13 E-018 do not state a
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claim against the Union under PERA, the statute that this agency
enforces, and the charge is therefore subject to summary dismissal.
RECOMMENDED ORDER
The unfair labor practice charges are dismissed in their entirety.
MICHIGAN EMPLOYMENT RELATIONS COMMISSION
___________________________________
Doyle O’Connor
Administrative Law Judge
Michigan Administrative Hearing System
Dated: July 3, 2013
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